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Restatement (Second) of Agency on Respondeat Superior
As we have seen, in some circumstances, a defendant may be subject to liability for injury caused to a plaintiff by a third-party injurer. In cases where the defendant has a duty to protect the plaintiff or where an intervening act by a third-party is foreseeable, the defendant is liable because the defendant breached his duty to exercise reasonable care and that breach of duty was a cause-in-fact of harm to the plaintiff.
Vicarious liability is different. In cases of vicarious liability, a defendant is subject to liability for injury caused by a third-party injurer based on the relationship between the defendant and the third-party injurer, even where the defendant did not breach a duty of care to the plaintiff and the defendant's conduct was not a cause-in-fact of harm to the plaintiff.
One common type of vicarious liability is the liability of an employer for the negligence of her employees. This type of vicarious liability is known as respondeat superior, Latin for "let the master answer" [for the negligence of her employee]. A plaintiff seeking to hold a defendant liable under respondeat superior must prove that (1) the employee is subject to liability for negligence under all five elements of negligence liability as applied to the employee’s conduct and (2) the defendant (i.e. the employer) is liable for the employee's negligence under the elements of respondeat superior. In such a case, the employer is not subject to liability for its own negligence in hiring, training, or supervising the employee (which would entail applying the five elements of negligence liability to the conduct of the employer) but rather because the employer is answerable for the employee’s negligent conduct which caused injury to the plaintiff.
Liability under respondeat superior requires that the plaintiff establish (1) a master-servant relationship between the employer and the employee and (2) that the negligent conduct of the employee was within the scope of his employment. The master-servant element of respondeat superior draws a distinction between an employee and an independent contractor. Generally, an employer can be held vicariously liable under respondeat superior for the negligence of her employees but not for the negligence of independent contractors. To better understand the distinction between an employee and an independent contractor, consider the example of two people who work in a store. A store clerk is typically considered an employee. The clerk’s hours and pay are determined by the store owner, and the clerk performs his job as instructed by the store owner. By contrast, an electrician hired to fix the lighting in the store is typically considered an independent contractor. The electrician sets his own hours and fees for service, and the electrician performs the job as he sees fit using his own tools.
The following sections of the Restatement (Second) of Agency that provide more detailed rules for the two elements of respondeat superior.
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